Section 26(3) of the Constitution states that no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Therefore, a court must proceed cautiously before it can grant an eviction order. In South Africa, the procedure for lawful evictions from residential property is regulated by the Prevention of Illegal Eviction and Unlawful Occupation of Land Act (the “PIE Act”). The PIE Act does neither apply to property leased for commercial, industrial or agricultural purposes, nor to holiday accommodation. The registered owner of a residential property, or a person in charge of such premises, has the right to initiate proceedings (as applicant) under the PIE Act. A person in charge means a person who has or, at the relevant time, had legal authority to give permission to a person to enter or reside upon the land in question.
Examples of such persons include a rental agent who acts on the lawful instructions of the owner or an executor of an estate that includes a residential property. To bring an application successfully, besides from having to prove that he or she is the owner or the person in charge of the property, the applicant must prove that the tenant (or respondent) is an unlawful occupier. The PIE Act defines an unlawful occupier as a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land. Examples of an unlawful occupier includes a defaulting tenant whose lease has been legally cancelled or any other person who does not have the express or tacit consent of the owner or person in charge of the premises to occupy the premises.
Once you, as a landlord, cancel a lease agreement, a tenant is no longer a tenant, but an unlawful occupier. The question now arises of when a lease agreement can be considered as legally cancelled. The first step is to have a look at the terms of the lease agreement between the landlord and the tenant. The lease agreement will determine when the lease period comes to an end and whether the landlord must notify the tenant (usually in writing) that he or she does not wish to continue with the lease agreement. The lease agreement will also make provision for instances when the landlord may terminate the lease agreement before the lease period expires, for example, due to breach of the lease agreement by the tenant. The lease agreement will determine the procedure to follow when a tenant is in breach of the lease agreement and the first step will usually be a written notice by the landlord to the tenant to remedy the breach within a specific period [of time], failing which, the landlord will have the right to, inter alia, cancel the lease agreement and take back possession of the leased premises.
It is further important to keep the provisions of the Consumer Protection Act in mind and for that reason a landlord should obtain legal advice from an attorney to ensure that the correct procedure is followed right from the beginning. In terms of section 4(6) of the PIE Act, if an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.
However, in terms of section 4(7), if an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether the land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women. Therefore, landlords who allow six months to pass before they start with the eviction process will face more obstacles to obtain an eviction order, because the court is obliged to investigate whether the municipality should provide the occupiers with alternative accommodation. It is therefore important to immediately consult an attorney when your tenant is in breach of his or her residential lease agreement and to follow the proper legal procedures to prevent a long and expensive eviction procedure.
DANIËL VAN ZYL
ATTORNEY & CONVEYANCER
VAN ZYL KRUGER INC